Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, September 22, 2006

Case Law Developmetn: Statute of Limitations in Child Support Actions

The Supreme Court of Montana held that the statute of limitations barred an action for premarital child support in a case in which the parties had two children in 1981 before they were married in 1986 and then sought divorce after 17 years of marriage.  The trial court granted the ex-wife retroactive premarital child support, as well as a portion of the ex-husband's retirement benefits. On appeal, the court reversed and remanded. The 10-year statute of limitations in Mont. Code Ann. § 27-2-201 barred the ex-wife's claim for premarital child support. At no time between the birth of the child in 1981 and the parties' marriage in 1985 was an order of child support issued, and while the ex-husband might have had a moral obligation to support the child, under the laws in effect at the time, he did not have a legally-imposed obligation. The child for whom support was sought was 23 years old at the time of the parties' dissolution trial and was no longer residing with the ex-wife. The court also reversed the trial court's division of the ex-husband's retirement benefits. The trial court erred in using the "self-only annuity" benefit amount and the trial court was to recalculate the ex-wife's marital portion based on the ex-husband's net annuity.

Momsen v. Momsen, 2006 MT 233, 2006 Mont. LEXIS 445 (September 19, 2006)
Opinion on the web (last visited September 21, 2006 bgf)

September 22, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Monday, August 28, 2006

Case Law Development: Child Support Obligation for Medical Expenses Includes Costs of Child's Therapist

The New Jersey Court of Appeals addressed the financial responsibility incurred by a couple's divorce settlement in which the father was to pay most of the children's uninsured medical expenses.  The child's therapist was a licensed, certified social worker.  Father argued that he should not have to pay for the therapist's services because she was not a psychologist or a physician and because the children had not been diagnosed with a mental illness.  The cour rejected this argument, reasoning that:

Viewing the protracted and acrimonious nature of the ongoing litigation between these parties, as focused on the children and their relationship with their parents, it would be myopic to conclude that these children have not been subjected to significant stress, trauma, and turmoil that warranted professional intervention. Moreover, paragraph 10 of the parties' property settlement agreement specifically provides that the terminology "uninsured medical expenses" is to be "interpreted broadly" to include not only psychological or psychiatric treatment, but "any other healthy related care." Certainly, the services of Ms. Roll, as found by the judge, fall within this broad definition of unreimbursed expenses of the children.

Tafaro v. Tafaro, New Jersey (August 25, 2006)
Opinion on the web  (last visited August 27, 2006 bgf)

Post amended August 31, 2006: Thanks to Pieter Droppert of the New Jersey Family Law Blog, for pointing out my confusion in a prior version of this post.   His point there -- that readers (and fellow bloggers) -- should never consider blog commentary on cases to be a substitute for reading the cases themselves is one with which I wholeheartedly agree!

August 28, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Friday, August 25, 2006

Case Law Development: Calculation of Child Support in Joint Custody Arrangements

The Iowa Court of Appeals upheld a trial court's award of child support in a case in which the parties had stipulated to "joint physical placement" and a "joint parenting plan" for their child.  Father argued that the child support award treated him as though he were not the custodial parent, when he was a joint custodian according to the agreement.  Under Iowa law, the child support obligation of parents who provide "joint physical care" of a child is calculated using the "offset method." "In the offset method each parent should be deemed the noncustodial parent on the guidelines chart for purposes of calculating the support each would owe the other. One child support obligation is offset against the other parent's child support obligation, rather than requiring a monthly exchange of child support payments."

However, the trial court had calculated support as though Mother had custody and Father had visitation.  The appellate court that, even though the parties had termed their arrangement "joint custody", they did not in fact have joint physical care as actual overnight time with father was "approximately one-third of nights and an average of approximately one-third of the hours of a year." Thus it was proper to calculate child support as though mother were primary custodian.

In re Marriage of Reeves, 2006 Iowa App. LEXIS 997 (August 23, 2006)
Opinion on web (last visited August 25, 2006 bgf)

August 25, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Sunday, July 23, 2006

Case Law Development: Child Support May be Shared by Psychological and Biological Fathers

The New Jersey Court of Appeals reviewed a trial court's decision to order child support for a 15-year-old girl from both "her biological father, who was unknown to her until these proceedings, and the man she called Dad for almost ten years." In reviewing the appeal by the biological father, the court held that the biological father was properly ordered to submit to genetic testing, as daughter's relationship with her psychological father had already deteriorated and she sought to determine her biological father. The court further held that equitable estoppel did not make the psychological father solely responsible for the daughter's support, since biological parents have the primary support obligation absent exceptional circumstances. Here, the court found that while biological father had the primary support obligation, it was proper for him to share the obligation with the psychological father because the biological father could not pay the entire amount of support.

J.R. v. L.R., 2006 N.J. Super. LEXIS 198 (July 17, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

July 23, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Laches Defense Unavailable in Child Support Actions

California Family Code section 4502(c) applies retroactively and bars a parent from relying on laches to defend an action to enforce a child support order.   The California Supreme Court holds that the terms of the Family Code itself dictate retroactive application. Moreover, an exception to retroactive application of laws that create new duties does not apply to the laches defense as "Assertion of a laches defense seeks an equitable act of grace to relieve the burden of an existing obligation. Elimination of the defense does not create a new duty."

Moreover, the court rejected the due process challenge to retroactive application, holding that this application advances a compelling state interest.  "Unquestionably, the availability of laches impaired the ability of a parent to collect child support. Eliminating the defense necessarily advances the state’s interest in securing payment of all child support obligations. Moreover, to the extent obligor parents benefit from their efforts to evade support obligations through the use of the defense, section 4502(c) cures this “ rank injustice of the former law.”

In re the Marriage of Fellows, 2006 Cal. LEXIS 8764 (July 20, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

July 23, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 19, 2006

Case Law Development: Child Support Obligations Do Not Violate Constitutional Rights

The US District Court for the Eastern District of Michigan firmly rejected a petition to enjoin a paternity prosecution on the grounds that requiring fathers to accept responsibility for children violates equal protection.  Clearly, the petitioner's request did not sit well with the court:

"According to the pleadings, Dubay commenced a personal relationship with defendant Lauren Wells, dated her, engaged in intimate sexual relations, impregnated her, terminated his relationship, and sued her for bearing his child. If chivalry is not dead, its viability is gravely imperiled by the plaintiff in this case. But chivalry is not the issue here, nor does it provide a basis upon which to decide the legal and policy issues that Dubay seeks to advance through this litigation. Rather, the plaintiff contends that Michigan's paternity statutes are repugnant to the United States Constitution's Due Process and Equal Protection Clauses because he has no say, he argues, in the decision whether to beget and bear a child. Therefore, he insists, he ought not to be saddled with the financial responsibility of the child's support, and he should receive damages from the private and public defendants who are attempting to exact that toll from him. The plaintiff's claims have been rejected by every court that has considered similar matters, and with good reason."

Plaintiff had framed his case as a 1983 civil rights action and, as the court observed, "The fundamental flaw in Dubay's claim is that he fails to see that the State played no role in the conception or birth of the child in this case, or in the decisions that resulted in the birth of the child."

Dubay v. Wells, U.S. Dist. Ct. E.D. Mich. (July 17, 2006)
Opinion on the web (last visited July 19, 2006) bgf

July 19, 2006 in Child Support (establishing) | Permalink | Comments (1) | TrackBack (0)

Sunday, April 30, 2006

Missouri Killing Spree Triggers Review of Child Support Files for Errors

Missouri child support workers are beginning a review of about 400 files in St. Louis to determine if an error in the amount owed by Herbert L. Chalmers,  who murdered four women last week before taking his own life, is more widespread. Missouri officials acknowledged that a data entry error led to a mistake in calculating Chambers’ child support obligation, however, they said, he had many opportunities to correct the error.  Source.  Robert Patrick, St. Louis Post-Dispatch, To read the complete story, please click here (last visited April 30, 2006, reo).

April 30, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Monday, April 24, 2006

Voluntary Support of Adult Children Becoming Routine?

"At 23, Jason McGuinness lives a postcollege life in Manhattan that is very nearly typical. He works as a media research analyst, making about $30,000 a year. Sharing a two-bedroom apartment on the fourth floor of a walk-up building with a roommate on the Upper East Side, his portion of the rent is $1,100 monthly. . . . And like many of his peers — educated, employed, urban-dwelling young adults — he receives monthly assistance from his parents, in the form of a $300 check and the payment of his cellphone bill.

This is not the largesse of wealthy families doled out through trust funds. Nor is the money a couple of $20 bills tucked into a card at the holidays. Mr. McGuinness and others like him are the beneficiaries of an increasingly common subsidy arriving regularly from Mom and Dad, something like a family fellowship. It helps to pay for housing, bills and travel expenses, and the support has been increasing for the past two decades as education is extended, marriage is delayed and young people take the scenic route from adolescence to adulthood." By Anna Bahney,New York Times Link to Article (last visited 4-23-06 NVS)

April 24, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 19, 2006

Federal Judge Warns New York Legislators about the Necessity of Additional Child Welfare Agency Funding

The federal judge overseeing a class-action lawsuit against New York's child welfare agency warned Tuesday that failing to support increased funding for the state's child welfare  system would undermine a court-ordered overhaul.  It is believed that his comments were directed at state legislators, who are considering a proposal to increase funds $52 million, from about $200 million. Source. Richard G. Jones, Tina Kelley, The New York Times, For the complete story, please click here (last visited April 19, 2006, reo).

April 19, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 12, 2006

Illinois Former Boyfriend and Sperm Donor Sued for Child Support

An Illinois sperm donor whose sperm was used to artificially impregnate his former girlfriend is being sued for child support.  The in-vitro fertilization of the woman led to the birth of twin daughters. Both 45, the couple met on a dating web site and had a relationship for about 15 months. He claims he had no intention of doing anything more than provide his girlfriend with semen she needed to conceive, although he allowed his name to be put on the birth certificates. Her attorney claims he has “concocted” a story to extricate himself from having to pay child support. His lawyer claims it is a case of “involuntary parentage.”  Source:  Steve Patterson, Chicago Sun Times, For the complete story, please click here (last visited April 12, 2006, reo).

April 12, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Sunday, April 2, 2006

South Dakota Court is Unsympathetic to Obligor Claiming Perjury and Refusing to Produce Work Records

The South Dakota Supreme Court had little sympathy for a child support obligor who claimed that his ex-wife and a lawyer appointed as a referee in a child-support hearing should be jailed for perjury. In a unanimous opinion, the court ruled that the obligor failed to prove that his ex-wife and a lawyer appointed as a referee in a child-support hearing had perjured themselves. It also ruled that the obligor must pay $562 a month in child support.  This figure was arrived at when the obligor refused to turn over employment records to the appointed referee and the referee then went to the state Labor Department records, which indicated that the obligor’s wages averaged about $2,700 a month. It is reported that since the obligor’s 1999 divorce, there have been 52 motions filed in the case, most by the obligor. Source.  AP, Joe Kafka, For the complete story, please click here (last visited April 2, 2006, reo). Please_click_here_for_South_Dakota_perjury_slip_opinion.pdf

April 2, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Sunday, March 26, 2006

Daughter May Not Sue Dad For Child Support Mom Didn’t Seek

In a case of first impression in that state, the Pennsylvania Supreme Court ruled last week that the adult daughter of a failed marriage as a third party cannot sue her father to enforce a child support provision from her parents' property settlement agreement that would benefit her directly. However, the justices split over the issue of whether the result should be based on contract law or public policy gounds.  Asher Hawkins of the The Legal Intelligencer has provided an initial analysis of the decision on the website.  Source:  Asher Hawkins, Legal Inteligencer,  Asher Hawkins analysis of this case may be found here (last visited March 26, 2006, reo). 

Wheamei Jenq Chen v. Chen, 2006 Pa. LEXIS 253 (March 20, 2006)

You may download a PDF copy of the slip opinion of the Pennsylvania child_support_ruling here.pdf

March 26, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Saturday, March 18, 2006

Case Law Development: Ohio Surrogate Mom Must Repay Her Fee to Biological Father Because She Won Custody of Children

In an ongoing battle between the courts of Ohio and Pennsylvania, the latest ruling comes from Ohio where the surrogate mother, who was awarded custody of triplets she delivered, must repay the biological father her $20,000 surrogate's fee and the child support he was required to pay for the three boys. Although a Pennsylvania court had ruled that the contract between the parties was void, in a unanimous ruling Wednesday, the 9th Ohio District Court of Appeals said the surrogate mother had violated her surrogate's agreement when she claimed the triplets as her own after their birth and took them home to Pennsylvania.  The contract contained language that required the surrogate and her spouse to surrender custody of the children following their birth.  It also contained language stating that if the agreement was breached, the surrogate and her spouse would reimburse the biological father, a 64 year old professor at Cleveland State University.

The court ruled that “upon undisputed evidence that the surrogate and her spouse breached the contract and the conclusion that the contract is enforceable,” the surrogate and her spouse are liable for restitution of the monies paid by the biological father, “as well as attorney fees as may be determined by the common pleas court on remand.”  Moreover, they are liable “for all monies the biological father has been required to pay to them by court order, such as child support.”  J.F. v. D.B., filed March 15, 2006. Ohio Ninth Circuit Court of Appeals. You may download the Ohio_Court_of_Appeals_surrogate_slip opinion here.pdf (reo)

March 18, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Friday, March 17, 2006

Case Law Development: Child Support Adjustments Based on Percentage of Residential Time Applies only to Parents Actively Exercising Overnight Visitation

The Florida Court of Appeals affirmed a trial court's award of child support based on the actual time the non-custodial parent exercised visitation rather than the time agreed to in the parenting plan.  Florida statutes provides an adjustment to child support in situations in which children spend more than forty percent of their time with one parent.   Here, Father had the right to alternate weekend visitation beginning on Thursdays (which, combined with other visitation would have amounted to more than 40 percent), but in fact only took the children beginning on Fridays.  The court held that the trial court acted properly in calculating Father's child support without applying the 40 percent adjustment because that rule only applies to parents actively exercising overnight visitation for forty percent of the nights of the year, rather than parents simply having that entitlement.

Font v. Mastrapa-Font, 2006 Fla. App. LEXIS 3553 (March 15, 2006)
Opinion on the web  (last visited March 17, 2006 bgf)

March 17, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Sunday, March 12, 2006

Men's Rights Advocacy Group Challenges Michigan’s Child-Support Law in Federal Court

A men's rights advocacy group, The National Center for Men, filed a lawsuit on Thursday in the United States Federal District Court in Detroit alleging that Michigan’s child-support law is unconstitutional because it violates reproductive rights established in Roe v. Wade. The suit claims that a lack of reproductive rights for men violates the equal protection clause of the Constitution.  Source: Please click here for the complete story (last visited March 12, 2006, reo).

March 12, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Friday, March 10, 2006

Case Law Development: New Jersey Supreme Court Requires Appointed Counsel for Indigent Parents Facing Coercive Incarceration for Non-payment of Child Support

The New Jersey Supreme Court has joined a number of other states in concluding that, even when a court is pursuing civil child support enforcement proceedings, if an indigent litigant faces a risk of incarceration, he or she has a right to assigned counsel.  The Court rejected the contention that a judge can adequately protect an indigent parent by conducting a "thorough and searching ability-to-pay hearing. However well intentioned and scrupulously fair a judge may be, when a litigant is threatened with the loss of his or her liberty, process is what matters."  The court concluded that from now on in enforcement hearings, "parents facing potential incarceration must be advised of their right to appointed counsel if they are indigent and, on request and verification of indigency, must be afforded counsel. Otherwise incarceration may not be used as an option to coerce compliance with support orders." 

In considering the practical implications of its ruling the court commented: "We realize that unless there is a funding source for the provision of counsel to indigent parents in [child support enforcement] proceedings, coercive incarceration will not be an available sanction. We will not use our authority to impress lawyers into service without promise of payment to remedy the constitutional defect in our system. The benefits and burdens of our constitutional system must be borne by society as a whole. In the past, the Legislature has acted responsibly to provide funding to assure the availability of constitutionally mandated counsel to the poor. We trust that the Legislature will address the current issue as well."

Pasqua v. Council, 2006 N.J. LEXIS 171  (March 8, 2006)
Opinion on the web (last visited March 9, 2006 bgf)

March 10, 2006 in Attorneys, Child Support (establishing), Contempt | Permalink | Comments (0) | TrackBack (0)

Case Law Developments: Acceptance of Child Support Requires Dismissal of Appeal Contesting Parentage

The Supreme Court of Delaware held that Mother's action to establish child support and acceptance of support payments from her partner required dismissal of the appeal from the trial court's award of joint custody.  The disputing parents in this case are two women who, during the course of their nine-year relationship bore four children by artificial insemination from the same anonymous donor.  One mother gave birth to triplets and several years later, the other mother had a daughter.  The couple and the four children lived together until 2003, when the couple decided they could no longer live together.  They agreed that the triplet's biological Mother would be the residential parent of the four minor children, with generous visitation for the biological Mother of the youngest daughter. After a few months, Mother of the youngest indicated that she would not abide by the agreement and took custody of the triplets. 

In resolving the dispute, the trial court awarded both mothers joint custody, finding that the mother of the youngest daughter was a de facto parent to the triplets.  The triplet's biological mother filed for child support and also appealed the trial court's action.  The court of appeals determined that it need not reach the issue of whether Delaware recognized de facto parent status because the acceptance of benefits doctrine required dismissal of the appeal. "The "acceptance of the benefits" doctrine provides that an appeal from a judgment is prohibited when the appellant has voluntarily accepted benefits from that judgment."

Smith v. Smith, 2006 Del. LEXIS 113 (March 7, 2006)
Opinion on the web (last visited March 8, 2006 bgf)

March 10, 2006 in Child Support (establishing), Paternity | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 7, 2006

Case Law Developments: Dealing with Depreciation Deductions in Calculating Child Support

The Nebraska and Iowa courts have addressed the proper method to address depreciation deductions in calculating income from self-employment for child support purposes.  In both cases, the court had dissallowed the entirety of depreciation deductions in calculating the income of the self-employed farmer fathers.

In Nebraska, the supreme court concluded that, so long as deductions do not represent artificial treatment of assets for the purpose of avoiding child support obligations, the court should include depreciation deductions in calculating income, using the straight-line depreciation method.  Only after arriving at a child support amount based on this income may the court consider whether a deviation from the presumed child support amount is necesssary.  In this case, the trial court had determined that Husband - a self-employed farmer - was entitled to a depreciation deduction, but it did not then use the straight-line method for calculating the deduction.  Rather, the court used Husband's depreciation figures from his taxes, which used a declining-balance method, and then added back one-half of the depreciated amounts in order to arrive at Husband's income for child support purposes.  The Nebraska Supreme Court reversed because the trial court had manipulated the amount of income in order to vary the support amount under the guidelines.  Instead, the court required trial courts to follow a strict two-step process: "Deviations from the guidelines must take into consideration the best interests of the child, and in the event of a deviation, the trial court must state the amount of support that would have been required under the guidelines absent the deviation and include the reason for the deviation in the findings portion of the decree or order ..."

Gress v. Gress, 271 Neb. 122; 2006 Neb. LEXIS 33 (March 3, 2006)
Opinion on the web (last visited March 6, 2006 bgf)

The Iowa Court of Appeals addressed the same issues, affirming the trial court's decision to disregard husband's depreciation deductions in order to provide adequate child support.

In re Marriage of Ruth, 2006 Iowa App. LEXIS 178 (March 1, 2006)
Opinion on the web (last visited March 6, 2006 bgf)

March 7, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Friday, March 3, 2006

Case Law Development: Payor Spouse May not Adjust Agreed Child Support Downward Simply Because In Excess of Guidelines

Husband and Wife had agreed in their divorce that Husband would pay child support, including an annual 5% increase, and that Husband would share all medical expenses with Wife.  When Wife brought an action to enforce that agreement, Husband countered with a petition to reduce supprot.  The trial court granted Husband's motion, basing the downward modification on the fact that the support was in excess of child support guidelines.  The Florida Court of Appeals reversed, reaffirming its position that payor spouses may not rely solely on the guidelines for modification of an agreed-to, judicially adopted child support order without a showing of independent changed circumstances.

Simmons v. Simmons, 2006 Fla. App. LEXIS 2771 March 1, 2006
Opinion on the web (last visited March 3, 2006 bgf)

March 3, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Lump Sum Personal Injury Award not Income for Purposes of Calculating Child Support

In an action to modify child support, the trial court denied mother's request that the court allocate to Father's income a portion of the $2,364,500 lump sum settlement of the personal injury lawsuit he had filed after having become disabled from dentistry after an accident in a store. The California Court of Appeal affirmed the trial court's order. The court held that the entirety of an unallocated, lump sum personal injury settlement or award is not income for purposes of calculating child support.  Recognizing that that portion of a personal injury award that is intended to be compensation for loss of income and loss of earning capacity may be considered as income.  However, the court recognized the fact-driven nature of the trial court's findings as to the purpose of the award and the allocation between that designed to compensate for earnings and that portion designed to compensate for pain and suffering.  Thus, the decision is "best left to the discretion of the trial court, considering all the evidence before it."  Here, the court noted that "any attempt to allocate the father's recovery among all the elements of his damages would have been pure speculation.... The mother offered to the trial court from the personal injury proceedings only the father's expert testimony on loss of profits and loss of net income. This presented such an incomplete picture of the father's total damages, that anything other than an arbitrary apportionment would have been impossible."

In re Marriage of Heiner, 2006 Cal. App. LEXIS 263 (February 27, 2006)

March 3, 2006 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)